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Casual Worker Legislation in South Africa

Casual worker legislation varies depending on the number of hours worked in a month. If a casual worker is employed for more than 24 hours per month, their rights are very similar to the rights of permanent employees. A casual employee who works for less than 24 hours per month is still protected by law, however, there are fewer minimum standards of employment.

What is the Basic Conditions of Employment Act (BCEA)?

The Basic Conditions of Employment Act (BCEA) sets minimum standards of employment to protect workers in South Africa from exploitation. This casual worker legislation applies to workers employed for more than 24 hours per month.

BCEA Casual Worker Legislation

1. Working times:

Shift work

While the maximum shift length for a five-day work week is 9 hours, an employment agreement may allow longer shifts where the working week is shorter. A casual employee typically works a compressed work week. Regardless of the number of days worked per week, the casual worker may not work for more than 12 hours in any day (including any breaks).

The casual worker is entitled to a rest period of 1 hour for every 5 hours worked. A written agreement between worker and employer can reduce this rest period to 30 minutes.

SEE: BCEA: Section 14(1)-(5) Meal Intervals

The casual worker must have a daily rest period of 12 hours from the end of one work day to the start of the following work day. If the employee lives on the premises and receives a meal break of at least 3 hours, the rest period can be reduced to 10 hours. This is particularly relevant to casual workers in the farming sector.

The casual worker must have a weekly rest period of 36 continuous hours. A written agreement between employer and worker can provide a rest period of at least 60 consecutive hours every two weeks.

SEE: BCEA: Section 15 Daily and weekly rest period

Weekend work

If the casual worker typically works on a Sunday, the worker must be paid at time and a half their normal hourly rate.

If the casual worker is requested to work on a Sunday outside typical working hours, payment must be double the normal hourly rate for hours worked OR one full day’s pay (whichever is the larger amount).

SEE: BCEA Section 16: Pay for work on Sundays

Public holidays

If a public holiday falls on a day that the casual worker would typically work, they are entitled to be paid for the day’s work. If a casual worker agrees to work on a public holiday, they must be paid double the normal hourly rate for hours worked on the day OR they must receive a normal working day off in exchange.

SEE: BCEA Section 18: Public holidays

Overtime

Any employee may not work more than 45 hours per week and may not work on more than 5 days per week. Time worked beyond 45 weekly hours should be paid at overtime rates. This legislation refers to casual workers too.

A casual worker will rarely work overtime, as these employees typically work less than full-time workers. However, in the case of seasonal work, a casual worker may require overtime pay.

Overtime must be paid per hour of overtime worked at one and a half times the worker’s ordinary hourly wage. However, no worker may work more than 10 hours of overtime per week.

SEE: BCEA Section 10 Overtime

2.Payment:

The casual worker must be remunerated:

daily, weekly, fortnightly or monthly

in cash, cheque or direct deposit into an account designated by the worker

If a worker is paid in cash or by cheque, the casual worker must be paid:

in a sealed envelope

at the workplace or location agreed to by the employee

during working hours or within 15 minutes before or after the shift

Remuneration must be paid no later than 1 week after the completion of the period for which remuneration is calculated or the termination of the contract of employment.

SEE: BCEA Section 32 Payment of remuneration

NOTE: Certain sectors have legislated minimum wages for workers (full-time or casual) within these sectors. Ensure that you familiarise yourself with the various sectoral determinations that inform the BCEA.

3. Leave:

Annual leave

Workers must get annual leave of at least:

21 consecutive days, OR

1 day for every 17 days worked, OR

1 hour for every 17 hours worked.

A public holiday cannot be calculated as annual leave.

Both the employer and casual worker should agree to the timing of annual leave. Even if they do not agree, leave must be granted not later than 6 months after the end of the annual leave cycle. The annual leave cycle refers to each 12 month period from the date of employment.

Any annual leave owed to the worker must be paid upon termination of employment.

SEE: BCEA: Section 20-21 Annual leave & Pay for annual leave

Sick leave

An employee who works more than 24 hours during any month earns one day’s paid sick leave for every 26 days worked over a 6-month cycle. If a worker’s paid sick leave is exhausted, the employer does not have to pay the worker for sick days.

SEE: BCEA: Section 22 Sick leave

Maternity leave

Female casual workers are entitled to 4 months unpaid maternity leave without termination of their contract. During this time, the worker may draw maternity benefits from the Unemployment Insurance Fund.

SEE: BCEA: Section 25 Maternity leave

Family responsibility leave

Workers my take up to 3 days of paid leave a year to attend to certain family responsibilities, such as a birth or death in a family. Provisions for family responsibility leave only apply to casual workers who work:

4 days a week or more for one employer

24 hours a month or more, OR

4 months or more for an employer

SEE: BCEA: Section 27 Family Responsibility Leave

4. Deductions:

There are three deductions that the employer is legally required to make from a casual worker’s wages. These include:
• Unemployment Insurance Fund (UIF)
• SITE (tax)
• Any deduction ordered by a court

Any other deductions are illegal without the worker’s written consent. With the worker’s written consent, lawful deductions for medical aid, pension, trade union subscriptions, repayment of loans and more can be made. Deductions cannot exceed 25% of the worker’s normal wage. Consult the BCEA for a detailed description of lawful and unlawful deductions.

Notice must be in writing. Notice cannot be given while the worker is on leave, either by the employer or worker.

The most important casual worker legislation in the BCEA is outlined above. However, the BCEA also addresses administration and prohibition of victimisation and exploitation of workers. Click here to view the full BCEA.

What is the Labour Relations Act (LRA)?

The Labour Relations Act (LRA) works towards economic development, social justice, labour peace and democracy in the workplace. It applies to all workers, casual or full-time, regardless of the number of hours worked per month. The LRA regulates unfair labour practices and dismissals by employers.

LRA Casual Worker Legislation

1. Unfair Labour Practice

What is unfair labour practice?

Unfair labour practice excludes disputes about dismissals and dismissals. It refers to the following:

unfair conduct relating to the provision of benefits to a worker;

unfair conduct relating to promotion, demotion, probation or training of a worker;

unfair suspension of an employee or other unfair disciplinary action against a worker;

Workers may refer unfair labour practice disputes to a statutory or bargaining council or the CCMA. This referral must be made within 90 days of the date of an unfair labour act or 90 days of the date when a worker became aware of an unfair act. The employer must receive a copy of the referral.

2. Dismissal and Disciplinary Procedure

an employer terminates a contract of employment with or without notice;

an employee terminates a contract of employment with or without notice after the employer made continued employment intolerable for the employee;

an employee reasonably expects the employer to renew a fixed term contract of employment but the employer failed to renew it or offered to renew it on less favourable terms;

an employer refused to allow an employee to resume work after she took maternity leave in terms of any law, collective agreement or her contract of employment,

an employer refused to allow an employee to resume work after she was absent from work for up to four weeks before the expected date, and up to eight weeks after the actual date, of the birth of her child;

an employer who dismissed a number of employees for the same or similar reasons has offered to re-employ one or more of them but has refused to re-employ another.

Dismissal is fair if:

the operational requirements of the business have changed, OR

a worker displays poor conduct contravening the employer’s code of conduct, OR

the capacity of a worker is insufficient for the role due to poor work performance or ill health.

Dismissal is unfair if:

it does not adhere to fair procedure for dismissal, OR

a worker is forced to accept a demand, OR

a worker took action against an employer (or intended to) by exercising a right or taking part in proceedings, OR

a worker is pregnant, or intends to be pregnant, OR

a worker is discriminated against according to race, gender, language, disability, sexual orientation, family responsibility, and other factors, OR

an employer cannot prove a worker’s misconduct or inability based on poor work performance or ill health, OR

an employer cannot prove the validity of their operational needs that the worker cannot provide.

What is fair procedure for dismissal?

If dismissing a worker due to a change in a business’ operational requirements, the employer will have to provide severance pay equal to at least one week’s remuneration for each completed year of continuous service. The employer may also provide alternative employment deemed agreeable to the worker.

If dismissing a worker due to incapacity because of poor work performance, the employer must give the worker fair opportunity to meet the required performance standard through training or other means.

If dismissing a worker due to incapacity because of ill health, the employer must demonstrate attempts to adapt the employee’s work circumstances to accommodate their disability or attempts to adapt the employee’s duties.

If dismissing a worker due to poor conduct, the employer must demonstrate past efforts to correct the worker’s behaviour through a system of graduated disciplinary measures like verbal and written warnings.

Click here for more detailed information on fair procedure for dismissal.

Disputes about unfair dismissal may be referred to the CCMA for resolution. This referral must be made within 30 days of a dismissal date or an employer’s decision to dismiss. If a worker is dismissed after disclosing unlawful conduct in the workplace, the dispute may be brought before the Labour Court as it contravenes the Protected Disclosures Act.